RAGHWENDRA SHARAN SINGH versus RAM PRASANNA SINGH (DEAD) BY LRS on 13 March 2019

[2019] 4 S.C.R. 1069

RAGHWENDRA SHARAN SINGH

v.

RAM PRASANNA SINGH (DEAD) BY LRS

(Civil Appeal No.2960 of 2019)

MARCH 13, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Code of Civil Procedure, 1908– Or.7, r.11 – Father of theappellant (original plaintiff) and his brother jointly purchased theland in question and executed registered gift deed dtd. 06.03.1981in favour of the appellant – Appellant instituted partition suit in2001 against his brothers and others for partition of the joint Hindufamily properties – Original plaintiff was joined as defendant no.10in the 2001 suit – Original plaintiff filed Title Suit in 2003 againstthe appellant inter alia for declaration that the gift deed executed infavour of the appellant is sham – Appellant filed application u/Or.7r.11 for rejection of the plaint inter alia on the ground that the suit isbarred by limitation – Rejected – Appellant filed revision applicationbefore the High Court – Dismissed – On appeal, held: It is notdisputed that the gift deed, a registered gift deed was executed bythe original plaintiff himself along with his brother – Till 2003, forapproximately 22 years, neither the plaintiff nor his brother (whodied on 15.12.2002) during his lifetime claimed at any point of timethat the gift deed was showy deed of gift – It is the appellant whoinstituted the partition suit in the year 2001 against his brothers towhich even the plaintiff was a party as defendant no.10 – Summonand the copy of the plaint in the said suit was served upon theplaintiff in 2001 itself – Despite the same, he instituted the presentsuit in the year 2003 – By clever drafting, the plaintiff tried to bringthe suit within the period of limitation which, otherwise, was barredby limitation – Plaintiff never prayed to set aside the gift deed –Such a prayer was not asked cleverly – If such prayer would havebeen asked, in that case, the suit can be said to be clearly barredby limitation considering Art.59, Limitation Act and, therefore, onlya declaration was sought to get out of the provisions of the LimitationAct – Judgment passed by the High Court and the trial Court setaside – Application by the appellant u/Or.7 r.11 of the CPC toreject the plaint, allowed – Limitation Act, 1963 – Art.59.

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1070SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1 The plaintiff has specifically admitted that theplaintiff and his brother executed the gift deed on 06.03.1981. Itis admitted that the gift deed is a registered gift deed. It alsoemerges from the plaint that till 2003, neither the plaintiff nor hisBbrother (during his lifetime) challenged the gift deed dated06.03.1981 nor, at any point of time, claimed that the gift deeddated 06.03.1981 was a showy deed of gift. In fact, it is thedefendant-appellant herein who instituted the suit in the year 2001against his brothers to which even the plaintiff was a party asdefendant No. 10 and that was a partition suit filed by the appellantCherein-original defendant. It appears that the summon and thecopy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – wasserved upon the plaintiff in the year 2001 itself. Still, the plaintiffaverred in the plaint that it came to the knowledge of the plaintiffwith respect to the gift deed on 10.04.2003. Thus, it is born outDfrom the averments in the plaint that, till 2003, the plaintiff neverdisputed the gift deed and/or never claimed that the gift deeddated 06.03.1981 was a showy deed of gift. [Para 6.1] [1077-G-H;1078-A-C]

1.2 Both the Courts below have materially erred in notErejecting the plaint in exercise of powers under Order 7 Rule 11of the CPC. It is required to be noted that it is not in dispute thatthe gift deed was executed by the original plaintiff himself alongwith his brother. The deed of gift was a registered gift deed.The execution of the gift deed is not disputed by the plaintiff. Itis the case of the plaintiff that the gift deed was a showy deed ofFgift and therefore the same is not binding on him. Forapproximately 22 years, neither the plaintiff nor his brother (whodied on 15.12.2002) claimed at any point of time that the gift deedwas showy deed of gift. One of the executants of the gift deed –brother of the plaintiff during his lifetime never claimed that theGgift deed was a showy deed of gift. The summon of the suit filedby the defendant being T.S. (Partition) Suit No. 203 of 2001 wasserved upon the defendant No.10-plaintiff herein in the year 2001itself. Despite the same, he instituted the present suit in theyear 2003. Even from the averments in the plaint, it appears thatduring these 22 years i.e. the period from 1981 till 2001/2003,H

the suit property was mortgaged by the appellant herein-originaldefendant and the mortgage deed was executed by the defendant.By clever drafting the plaintiff has tried to bring the suit withinthe period of limitation which, otherwise, is barred by law oflimitation. [Para 7] [1081-D-H; 1082-A]

1.3 The plaintiff never prayed for any declaration to setaside the gift deed. Such a prayer is not asked cleverly. If sucha prayer would have been asked, in that case, the suit can be saidto be clearly barred by limitation considering Article 59 of theLimitation Act and, therefore, only a declaration is sought to getout of the provisions of the Limitation Act, more particularly,Article 59 of the Limitation Act. The aforesaid aspect has alsonot been considered by the High Court as well as the learnedtrial Court. Both the High Court as well as the learned trial Courterred in not exercising the powers under Order 7 Rule 11 of theCPC and in not rejecting the plaint in exercise of powers underOrder 7 Rule 11 of the CPC. The impugned judgment and orderpassed by the High Court as well as the trial Court are quashedand set aside. Consequently, the application submitted by theappellant herein-original defendant to reject the plaint underOrder 7 Rule 11 of the CPC is hereby allowed and the plaint,being Title Suit No. 19 of 2003 is hereby rejected.[Paras 7.1, 9] [1082-B-D, G-H; 1083-A]

T. Arivandandam v. T.V. Satyapal(1977) 4 SCC467 : [1978] 1 SCR 742 ;Ram Singh v. Gram PanchayatMehal Kalan(1986) 4 SCC 364 ; Madanuri Sri RamaChandra Murthy v. Syed Jalal (2017) 13 SCC 174 :[2017] 5 SCR 294; Church of Christ Charitable Trust& Educational Charitable Society v. PonniammanEducational Trust(2012) 8 SCC 706 : [2012] 6 SCR404;A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies(1989) 2 SCC 163 : [1989] 2 SCR 1; Sopan SukhdeoSable v. Assistant Charity Commissioner (2004) 3 SCC137 : [2004] 1SCR 1004 ; Sham Lal alias Kuldip v.Sanjeev Kumar(2009) 12 SCC 454: [2009] 5 SCR1049; N. V. Srinivas Murthy v Mariyamma (dead) byproposed LRsAIR 2005 SC 2897 : [2005] 1 Suppl.

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ASCR 411; Ram Prakash Gupta v. Rajiv Kumar Gupta(2007) 10 SCC 59 : [2007] 10 SCR 520 – relied on.

Bloom Dekor Limited v. Subhash Himatlal Desai(1994)6 SCC 322 :[1994] 3 Suppl. SCR 322 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2960of 2019.E

From the Judgment and Order dated 12.03.2013 of the High Courtof Judicature at Patna in Civil Revision No. 1829 of 2006.

Lakshmi Raman Singh, Advs. for the Appellants.

Brajesh Verma, Dinkar Sharma, Shirsh Kumar, E. C. Vidya Sagar,FUpendra Pratap Singh, Ms. Kheyali, D. K. Devesh, Advs. for theRespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Application for substitution is allowed inGterms of the prayer made.

1.1 Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 12.03.2013 passed in Civil Revision No. 1829 of 2006by the High Court of Judicature at Patna by which the High Court hasHdismissed the said revision petition and has confirmed the order passed by the learned Munsif, Danapur dated 28.08.2006 passed in Title SuitNo. 19 of 2003 by which the learned trial Court rejected the applicationsubmitted by the original defendant to reject the plaint in exercise ofpowers under Order 7 Rule 11(d) of the Code of Civil Procedure(hereinafter referred to as the ‘CPC’), the original defendant haspreferred the present appeal.

3. The facts leading to the present appeal in nutshell are as under:

That the original plaintiff and his brother Sheo Prasanna Singhjointly purchased the suit land in question in the year 1965. That theoriginal plaintiff, who is the father of the appellant herein-originaldefendant, and his late brother Sheo Prasanna Singh executed a registereddeed of gift in favour of the appellant herein on 06.03.1981 gifting thesuit land and put him in possession thereof. That the appellant herein-original defendant instituted one T.S. (Partition) Suit No. 203 of 2001against his brothers and others for partition of the joint Hindu familyproperties. That the respondent herein-original plaintiff in the presentsuit was also joined as defendant No. 10 in the same suit. It appears thatthe summon along with a copy of the plaint of the aforesaid partition suitwas allegedly served on the plaintiff-respondent herein on 21.12.2001.That Sheo Prasanna Singh died on 15.12.2002. That thereafter, therespondent herein-original plaintiff alone filed T.S. No. 19 of 2003 againstthe appellant herein-original defendant in the Court of Munsif, Danapurfor a declaration that the deed of gift dated 06.03.1981 executed in favourof the appellant herein is showy and sham transaction and no title andpossession with respect to the gifted property ever passed to the appellant-original defendant and hence the same is not binding on him. A prayerwas also made for confirming his possession over the suit property andin case he is found out of possession, then a decree for recovery ofpossession be passed.

3.1 That the appellant herein-original defendant after filing hiswritten statement, filed an application under Order 7 Rule 11 r/w OrderXIV, Rule 2 CPC for rejection of the plaint on the ground that the suit isclearly barred by law of limitation, as the deed of gift having been executedon 06.03.1981, the suit under Article 59 of the Limitation Act ought tohave been filed within three years of the deed of execution of the giftdeed, whereas the same has been filed after more than 22 years of theexecution of the deed. It was also further averred that the suit is not AB

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Amaintainable in view of Sections 91 and 92 of the Evidence Act as wellas Section 47 of the Registration Act.

3.2 That the Munsif, Danapur rejected the said application videorder dated 28.08.2006 on the ground that from the perusal of recordsand other documents, for determining the question of Limitation, oralBevidence are required to be taken into account. Therefore, the questionis to be adjudicated only after the evidence are led by both the parties.

3.3 Feeling aggrieved and dissatisfied with the order passed bythe Munsif, Danapur rejecting the Order 7 Rule 11 application, theappellant herein-original defendant filed a revision application before theCHigh Court. By the impugned judgment and order, the High Court hasdismissed the revision application and has confirmed the order passedby the Munsif, Danapur rejecting the Order 7 Rule 11 application. Hence,the present appeal at the instance of the original defendant.

4. Learned counsel on behalf of the appellant-original defendantDhas vehemently submitted that, in the facts and circumstances of thecase, both the High Court as well as the trial Court have materially erredin rejecting the Order 7 Rule 11 application and have materially erred innot rejecting the plaint in exercise of powers under Order 7 Rule 11(d)of the CPC.

E4.1 It is further submitted by the learned counsel appearing onbehalf of the appellant-original defendant that the registered gift deedwas executed by the original plaintiff in the year 1981. At no point oftime, till the year 2003, the original plaintiff as well as his brother LateSheo Prasanna Singh challenged the registered gift deed dated 06.03.1981.It is submitted that therefore the present suit filed by the plaintiffFchallenging the registered gift deed was after a period of approximately22 years from the date of the execution of the registered gift deed and,therefore, the same was clearly barred by law of limitation, moreparticularly, considering Article 59 of the Limitation Act.

4.2 It is further submitted by the learned counsel appearing onGbehalf of the appellant-original defendant that the High Court as well asthe trial Court ought to have appreciated the fact that by mere cleverdrafting, the plaintiff cannot bring the suit within the period of limitation,if otherwise the same is barred by law of limitation. It is submitted that,in the present case, as such, the original plaintiff deliberately did not H

specifically pray to set aside the registered gift deed dated 06.03.1981.It is submitted that if the plaintiff would have asked for such a relief, inthat case, the plaintiff was aware that the suit would be dismissed at thethreshold being barred by law of limitation. It is submitted that, therefore,deliberately the plaintiff specifically did not ask for the relief of quashingand setting aside the registered gift deed.

4.3 Relying upon the decisions of this Court in the cases of T.Arivandandam v. T.V. Satyapal (1977) 4 SCC 467; Ram Singh v.Gram Panchayat Mehal Kalan (1986) 4 SCC 364 and Madanuri SriRama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174, it is requestedto allow the present appeal and quash and set aside the impugned ordersrejecting the Order 7 Rule 11 application submitted by the defendant.

4.4 It is further submitted by the learned counsel appearing onbehalf of the appellant-original defendant that as held by this Court incatena of decisions while considering the application under Order 7 Rule11 of the CPC, only the averments in the plaint are required to beconsidered.

4.5 It is further submitted by the learned counsel appearing onbehalf of the appellant-original defendant that if clever drafting hascreated the illusion of a cause of action, as observed by this Court in acatena of decisions, the Court must nip it in the bud at the first hearingby examining the party searchingly under Order 10 of the CPC. It isfurther submitted that, therefore, as observed by this Court in the caseof T. Arivandandam (supra), an activist judge is the answer toirresponsible law suits. It is submitted that, in the present case, if thebundle of facts narrated in the plaint and the averments in the plaint, asa whole, are considered, in that case, the suit is not only barred by law oflimitation, but it is a vexatious and meritless suit and, therefore, the plaintis required to be rejected in exercise of powers under Rule 7 Order 11 ofthe CPC. In support of his submissions, the learned counsel appearingon behalf of the appellant-original defendant has relied upon the decisionsof this Court in T. Arivandandam (supra); Church of Christ CharitableTrust & Educational Charitable Society v. Ponniamman EducationalTrust (2012) 8 SCC 706; A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies(1989) 2 SCC 163; Bloom Dekor Limited v. Subhash Himatlal Desai(1994) 6 SCC 322; Sopan Sukhdeo Sable v. Assistant CharityCommissioner (2004) 3 SCC 137; Sham Lal alias Kuldip v. Sanjeev A

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AKumar (2009) 12 SCC 454; N. V. Srinivas Murthy v Mariyamma(dead) by proposed LRs AIR 2005 SC 2897 and Ram Prakash Guptav. Rajiv Kumar Gupta (2007) 10 SCC 59. Making the above submissions,it is prayed to allow the present appeal and quash and set aside theimpugned order passed by the High Court as well as the trial Courtrejecting Order 7 Rule 11 application and consequently to allow the saidBapplication and to reject the plaint in exercise of powers under Order 7Rule 11 of the CPC.

5. Learned counsel appearing on behalf of the original plaintiff-respondent has vehemently opposed the present appeal.

C5.1 It is vehemently submitted by the learned counsel appearingon behalf of the original plaintiff that the question of limitation is a mixedquestion of law and facts and for which the evidence is required to beled by the parties and therefore both, the High Court as well as thelearned trial Court, rightly refused to reject the plaint at the thresholdand in exercise of powers under Order 7 Rule 11 of the CPC.D

5.2 It is further submitted by the learned counsel appearing onbehalf of the original plaintiff that, while considering the application underOrder 7 Rule 11 of the CPC, the averments in the plaint alone are requiredto be considered and not the defence and/or the written statement filedby the defendant. It is submitted that, in the present case, it is specificallyEaverred in the plaint that the plaintiff came to know about the gift deed inthe year 2001, when the plaintiff instituted T.S. No. 203 of 2001 andasserted his right on the basis of the registered gift deed dated 06.03.1981.It is submitted that, as so averred in the plaint, till 2001, the defendant didnot assert his right on the basis of the registered gift deed dated 06.03.1981Fand, therefore, as averred in the plaint, the plaintiff came to know aboutthe registered gift deed in the year 2001, and when the suit was filed inthe year 2003, the suit cannot be said to be barred by law of limitation. Itis submitted that, in any case, the question with respect to the limitationcan be said to be a mixed question of law and facts, as rightly observedby the learned trial Court as well as the High Court, the evidence isGrequired to be led by both the parties and only thereafter, the issue withrespect to limitation is required to be considered. It is submitted that,therefore, the High Court has rightly refused to reject the plaint underOrder 7 Rule 11 of the CPC.

5.3 Making the above submissions, it is prayed to dismiss thepresent appeal.

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6. Heard the learned counsel appearing on behalf of the respectiveparties at length. We have perused the impugned judgment and orderof the High Court as well as the order of the trial Court, dismissing theapplication under Order 7 Rule 11 of the CPC and refusing to reject theplaint in exercise of powers under Order 7 Rule 11 of the CPC. Wehave also considered the averments in the plaint.

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6.1 At the outset, it is required to be noted that the plaintiff hasinstituted the suit against the defendant for a declaration that the defendanthas acquired no title and possession on the basis of the deed of gift dated06.03.1981 and that the plaintiff has got title and possession in the saidproperty. In the suit, the plaintiff has prayed for the following reliefs:

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“A That on adjudication of the facts stated above, it be declaredthat the defendant acquired no title and possession on the basisof the said showy deed of gift dated 06.03.1981 and the plaintiffDhas got title and possession in the said property.

B. That it be declared that the said showy Deed of Gift dated06.03.1981 is not binding upon the plaintiff.

C. That the possession of the plaintiff be continued over the suit-property and in case if he is found out of possession, a decreeEfor recovery of possession be passed in favour of the plaintiff.

D. That the defendant be restrained by an order of ad-interiminjunction from transferring or encumbering or interfering withthe possession of the plaintiff over the suit land, during thependency of the suit.F

E. That the cost of the suit be awarded to the plaintiff and againstthe defendant.

F. Any other relief or reliefs which deems fit and proper, be awardedto the plaintiff and against the defendant.”

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Considering the averments in the plaint, it can be seen that, assuch, the plaintiff has specifically admitted that the plaintiff and his brotherexecuted the gift deed on 06.03.1981. It is admitted that the gift deed isa registered gift deed. It also emerges from the plaint that till 2003, H

Aneither the plaintiff nor his brother (during his lifetime) challenged thegift deed dated 06.03.1981 nor, at any point of time, claimed that the giftdeed dated 06.03.1981 was a showy deed of gift. In fact, it is thedefendant-appellant herein who instituted the suit in the year 2001 againsthis brothers to which even the plaintiff was a party as defendant No. 10and that was a partition suit filed by the appellant herein-original defendant.BIt appears that the summon and the copy of the plaint – T.S. (Partition)Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001itself. Still, the plaintiff averred in the plaint that it came to the knowledgeof the plaintiff with respect to the gift deed on 10.04.2003. Thus, it isborn out from the averments in the plaint that, till 2003, the plaintiffCnever disputed the gift deed and/or never claimed that the gift deeddated 06.03.1981 was a showy deed of gift. With the aforesaid factsand circumstances, the application submitted by the appellant-originaldefendant to reject the plaint in exercise of powers under Order 7 Rule11 of the CPC is required to be considered.

D6.2 While considering the scope and ambit of the application underOrder 7 Rule 11 of the CPC, few decisions of this Court on Order 7Rule 11 of the CPC are required to be referred to and considered.

6.3 In the case of T. Arivandandam (supra), while consideringthe very same provision i.e. Order 7 Rule 11 of the CPC and the decreeEof the trial Court in considering such application, this Court in para 5 hasobserved and held as under:

“5. We have not the slightest hesitation in condemning the petitionerfor the gross abuse of the process of the court repeatedly andunrepentently resorted to. From the statement of the facts foundFin the judgment of the High Court, it is perfectly plain that the suitnow pending before the First Munsif’s Court, Bangalore, is aflagrant misuse of the mercies of the law in receiving plaints. Thelearned Munsif must remember that if on a meaningful — notformal — reading of the plaint it is manifestly vexatious, andmeritless, in the sense of not disclosing a clear right to sue, heGshould exercise his power under Order 7, Rule 11 CPC takingcare to see that the ground mentioned therein is fulfilled. And, ifclever drafting has created the illusion of a cause of action, nip itin the bud at the first hearing by examining the party searchinglyunder Order 10, CPC. An activist Judge is the answer toirresponsible law suits.....”

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6.4 In the case of Church of Christ Charitable Trust andEducational Charitable Society (supra), this Court in paras 13 hasobserved and held as under:

“13. While scrutinizing the plaint averments, it is the bounden dutyof the trial Court to ascertain the materials for cause of action.The cause of action is a bundle of facts which taken with the lawapplicable to them gives the Plaintiff the right to relief against theDefendant. Every fact which is necessary for the Plaintiff to proveto enable him to get a decree should be set out in clear terms. It isworthwhile to find out the meaning of the words “cause of action”.A cause of action must include some act done by the Defendantsince in the absence of such an act no cause of action can possiblyaccrue.”

6.5 In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem(supra), this Court explained the meaning of “cause of action” as follows:

“12. A cause of action means every fact, which if traversed, itwould be necessary for the plaintiff to prove in order to supporthis right to a judgment of the court. In other words, it is a bundleof facts which taken with the law applicable to them gives theplaintiff a right to relief against the defendant. It must includesome act done by the defendant since in the absence of such anact no cause of action can possibly accrue. It is not limited to theactual infringement of the right sued on but includes all the materialfacts on which it is founded. It does not comprise evidencenecessary to prove such facts, but every fact necessary for theplaintiff to prove to enable him to obtain a decree. Everythingwhich if not proved would give the defendant a right to immediatejudgment must be part of the cause of action. But it has no relationwhatever to the defence which may be set up by the defendantnor does it depend upon the character of the relief prayed for bythe plaintiff.”

6.6 In the case of Sopan Sukhdeo Sable (supra) in paras 11 and12, this Court has observed as under:

“11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998)2 SCC 70] it was held that the basic question to be decided whiledealing with an application filed under Order 7 Rule 11 of theCode is whether a real cause of action has been set out in the A

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plaint or something purely illusory has been stated with a view toget out of Order 7 Rule 11 of the Code.

12. The trial court must remember that if on a meaningful and notformal reading of the plaint it is manifestly vexatious and meritlessin the sense of not disclosing a clear right to sue, it should exercisethe power under Order 7 Rule 11 of the Code taking care to seethat the ground mentioned therein is fulfilled. If clever draftinghas created the illusion of a cause of action, it has to be nipped inthe bud at the first hearing by examining the party searchinglyunder Order 10 of the Code. (See T. Arivandandam v. T.V.Satyapal (supra).”

6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra),this Court has observed and held as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditionsenumerated in the said provision are fulfilled. It is needless toobserve that the power under Order 7 Rule 11 CPC can beexercised by the Court at any stage of the suit. The relevant factswhich need to be looked into for deciding the application are theaverments of the plaint only. If on an entire and meaningful readingof the plaint, it is found that the suit is manifestly vexatious andmeritless in the sense of not disclosing any right to sue, the courtshould exercise power under Order 7 Rule 11 CPC. Since thepower conferred on the Court to terminate civil action at thethreshold is drastic, the conditions enumerated under Order 7 Rule11 CPC to the exercise of power of rejection of plaint have to bestrictly adhered to. The averments of the plaint have to be read asa whole to find out whether the averments disclose a cause ofaction or whether the suit is barred by any law. It is needless toobserve that the question as to whether the suit is barred by anylaw, would always depend upon the facts and circumstances ofeach case. The averments in the written statement as well as thecontentions of the defendant are wholly immaterial whileconsidering the prayer of the defendant for rejection of the plaint.Even when the allegations made in the plaint are taken to be correctas a whole on their face value, if they show that the suit is barredby any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order7 Rule 11 CPC can be exercised. If clever drafting of the plainthas created the illusion of a cause of action, the court will nip it inthe bud at the earliest so that bogus litigation will end at the earlierstage.”

6.8 In the case of Ram Singh (supra), this Court has observedand held that when the suit is barred by any law, the plaintiff cannot beallowed to circumvent that provision by means of clever drafting so asto avoid mention of those circumstances, by which the suit is barred bylaw of limitation.

7. Applying the law laid down by this Court in the aforesaiddecisions on exercise of powers under Order 7 Rule 11 of the CPC tothe facts of the case in hand and the averments in the plaint, we are ofthe opinion that both the Courts below have materially erred in not rejectingthe plaint in exercise of powers under Order 7 Rule 11 of the CPC. It isrequired to be noted that it is not in dispute that the gift deed was executedby the original plaintiff himself along with his brother. The deed of giftwas a registered gift deed. The execution of the gift deed is not disputedby the plaintiff. It is the case of the plaintiff that the gift deed was ashowy deed of gift and therefore the same is not binding on him. However,it is required to be noted that for approximately 22 years, neither theplaintiff nor his brother (who died on 15.12.2002) claimed at any point oftime that the gift deed was showy deed of gift. One of the executants ofthe gift deed – brother of the plaintiff during his lifetime never claimedthat the gift deed was a showy deed of gift. It was the appellant herein-original defendant who filed the suit in the year 2001 for partition and thesaid suit was filed against his brothers to which the plaintiff was joinedas defendant No. 10. It appears that the summon of the suit filed by thedefendant being T.S. (Partition) Suit No. 203 of 2001 was served uponthe defendant No.10-plaintiff herein in the year 2001 itself. Despite thesame, he instituted the present suit in the year 2003. Even from theaverments in the plaint, it appears that during these 22 years i.e. theperiod from 1981 till 2001/2003, the suit property was mortgaged by theappellant herein-original defendant and the mortgage deed was executedby the defendant. Therefore, considering the averments in the plaintand the bundle of facts stated in the plaint, we are of the opinion that by A

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Aclever drafting the plaintiff has tried to bring the suit within the period oflimitation which, otherwise, is barred by law of limitation. Therefore,considering the decisions of this Court in the case of T. Arivandandam(supra) and others, as stated above, and as the suit is clearly barred bylaw of limitation, the plaint is required to be rejected in exercise of powersunder Order 7 Rule 11 of the CPC.B

7.1 At this stage, it is required to be noted that, as such, the plaintiffhas never prayed for any declaration to set aside the gift deed. We areof the opinion that such a prayer is not asked cleverly. If such a prayerwould have been asked, in that case, the suit can be said to be clearlybarred by limitation considering Article 59 of the Limitation Act and,Ctherefore, only a declaration is sought to get out of the provisions of theLimitation Act, more particularly, Article 59 of the Limitation Act. Theaforesaid aspect has also not been considered by the High Court as wellas the learned trial Court.

8. Now, so far as the application on behalf of the original plaintiffDand even the observations made by the learned trial Court as well as theHigh Court that the question with respect to the limitation is a mixedquestion of law and facts, which can be decided only after the partieslead the evidence is concerned, as observed and held by this Court in thecases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra)Eas well as in the case of Ram Prakash Gupta (supra), considering theaverments in the plaint if it is found that the suit is clearly barred by lawof limitation, the same can be rejected in exercise of powers under Order7 Rule 11(d) of the CPC.

9. In view of he above and for the reasons stated above, we areFof the opinion that both the High Court as well as the learned trial Courthave erred in not exercising the powers under Order 7 Rule 11 of theCPC and in not rejecting the plaint in exercise of powers under Order 7Rule 11 of the CPC. For the reasons stated above, the impugned judgmentand order passed by the High Court as well as the trial Court cannot besustained and the same deserve to be quashed and set aside.GConsequently, the impugned judgment and order passed by the HighCourt dated 12.03.2013 as well as the order passed by the Munsif,Danapur rejecting the Order 7 Rule 11 application filed by the originaldefendant are hereby set aside. Consequently, the application submitted by the appellant herein-original defendant to reject the plaint under Order7 Rule 11 of the CPC is hereby allowed and the plaint, being Title SuitNo. 19 of 2003 is hereby rejected. The present appeal is allowedaccordingly in terms of the above. No costs.

Divya Pandey

Appeal allowed.

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